United States District Court, D. Nevada
before the court is defendant Southern Highlands Community
Association's (the “HOA”) motion to dismiss.
(ECF No. 43). Plaintiff Bank of New York Mellon
(“BNYM”) filed a response (ECF No. 49), to which
the HOA replied (ECF No. 50).
before the court is defendant SFR Investments Pool 1,
LLC's (“SFR”) motion for partial summary
judgment (ECF No. 51), in which the HOA joined (ECF No. 60).
BNYM filed a response (ECF No. 65), to which SFR replied (ECF
case involves a dispute over real property located at 11545
Cantina Terlano Place, Las Vegas, Nevada 89141 (the
“property”). On August 11, 2005, Salma Khan
obtained a loan in the amount of $838, 150.00 to purchase the
property, which was secured by a deed of trust recorded on
October 10, 2005. (ECF No. 1).
deed of trust was assigned to BNYM via an assignment of deed
of trust recorded on December 23, 2009. (ECF No. 1).
January 27, 2011, defendant Alessi & Koenig, LLC
(“A&K”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $895.02. (ECF No. 1).
April 12, 2011, Khan recorded a loan modification agreement
increasing the principal balance under the loan to $1, 000,
706.62. (ECF No. 1).
April 20, 2011, A&K recorded a notice of default and
election to sell to satisfy the delinquent assessment lien,
stating an amount due of $2, 161.47. (ECF No. 1). On
September 8, 2011, A&K recorded a notice of trustee's
sale, stating an amount due of $3, 709.87. (ECF No. 1). On
July 11, 2012, SFR purchased the property at the foreclosure
sale for $9, 200.00. (ECF No. 1). A trustee's deed upon
sale in favor of SFR was recorded on July 24, 2012. (ECF No.
25, 2016, BNYM filed the underlying complaint. (ECF No. 1).
On October 12, 2016, BNYM filed an amended complaint,
alleging seven causes of action: (1) quiet title/declaratory
judgment against all defendants; (2) breach of NRS 116.1113
against A&K and the HOA; (3) wrongful foreclosure against
A&K and the HOA; (4) injunctive relief against SFR; (5)
deceptive trade practices against A&K and the HOA; (6)
judicial foreclosure against Khan; and (7) alternative claim
for breach of contract against Khan. (ECF No.
October 24, 2016, SFR filed an answer and counterclaim
against BNYM for quiet title/declaratory relief and
injunctive relief. (ECF No. 19).
instant motions, the HOA moves to dismiss BNYM's
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (ECF No. 43), and SFR moves for partial summary
judgment on an issue of law (ECF No. 51). The court will
address each as it sees fit.
Motion to Dismiss
may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A properly pled complaint must provide “[a]
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). While Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, the court must accept as true all
well-pled factual allegations in the complaint; however,
legal conclusions are not entitled to the assumption of
truth. Id. at 678-79. Mere recitals of the elements
of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678.
the court must consider whether the factual allegations in
the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow the court
to draw a reasonable inference that the defendant is liable
for the alleged misconduct. Id. at 678.
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged-but not shown-that the pleader is entitled to
relief.” Id. (internal quotation marks
omitted). When the allegations in a complaint have not
crossed the line from ...